7.  The applicant was born in 1966 and lived in Almaty, Kazakhstan. She currently resides in Moscow, Russia.
8.  In 2005-08 the applicant occupied the post of head of the corporate business department of the TuranAlem Bank (“the BTA Bank”), a private bank established in Kazakhstan and chaired at the material time by Mr M. Ablyazov.
9.  In 2001 Mr Ablyazov was involved in politics; he founded an opposition movement, Demokraticheskiy Vybor Kazakhstana (Democratic Choice for Kazakhstan) and in 2002 he was convicted of corruption, many international observers considering his trial to be politically motivated. In the applicant’s submission, at the material time she had remained Mr Ablyazov’s political supporter by replacing him as the head of a private company, Astana Holding, established by him. The applicant did not provide any further details of her alleged support for Mr Ablyazov. After his release following a presidential pardon in 2003, Mr Ablyazov had announced that he would devote his time to business and refrain from active participation in politics. In 2005 he had become the Chairman of the Board of Directors of the BTA Bank.
10.  In February 2009 the BTA Bank was nationalised due to its difficult financial situation. In the applicant’s submission, the nationalisation of the bank was a raider attack and a covert attempt to suppress the opposition movement. According to the applicant, bank employees, including herself, had denounced the nationalisation of the bank as unlawful.
11.  On 23 February 2009, while the applicant was on inpatient treatment in a private hospital, the Deputy Prosecutor-General of Kazakhstan, Mr A.D., and the deputy head of the Committee on National Security (“the CNS”) burst into the intensive care ward she was in, despite the objections of the medical staff, told her that criminal proceedings would be opened against Mr Ablyazov in connection with his opposition activities, and threatened her that they would prevent her from obtaining medical assistance and would institute reprisals if she refused to follow their instructions in the forthcoming criminal proceedings. They also told her that the question of whether she would be found guilty in those proceedings would not depend on the courts but on the leaders of Kazakhstan.
12.  On 1 March 2009 the applicant arrived in Russia with her minor daughter, who was, at the material time, two years old. On 15 May 2009 the applicant left for Azerbaijan and on 4 June 2009 she returned to Russia to receive medical treatment.
13.  On 3 July 2009 the applicant was arrested with a view to her extradition.
14.  In July 2011 Mr Ablyazov was granted asylum in the United Kingdom.
15.  On 2 March 2009 the Prosecutor General’s Office of Kazakhstan (hereinafter also “the Kazakhstan GPO”) instituted criminal proceedings against Mr Ablyazov and over twenty other individuals, including the applicant, on suspicion of large-scale misappropriation of the property of the BTA Bank. The case file was given the number 095751701710001.
16.  On 6 March 2009 the Kazakhstan GPO charged the applicant with large-scale misappropriation of BTA Bank financial assets, committed in an organised group under the direction of Mr Ablyazov and with the use of her position (Article 176 § 3 (a) and (b) of the Kazakhstani Criminal Code (“KCC”). The decision stated that between 2005 and 2008 the applicant, who had been head of the corporate business department of the BTA Bank and had “a relationship of trust” (доверительные отношения) with Mr Ablyazov owing to having previously worked with him, had taken an active part in the misappropriation of the bank’s financial assets. In particular, in collusion with other bank employees she had been involved in registering, and had herself registered, numerous sham offshore companies affiliated to or controlled by Mr Ablyazov and his accomplices, and had approved those companies’ loan requests on conditions obviously disadvantageous for the bank. She further supervised the implementation of the relevant decisions of the bank loan committee. The financial assets thereby transferred to the sham companies were then legalised through series of multi-step transactions and were deposited in foreign banks on accounts belonging to companies controlled by or affiliated with Mr Ablyazov and his accomplices; the loans were never paid back.
17.  On 11 March 2009 the Medeuskiy District Court (Almaty) ordered the applicant’s placement in custody, referring to the fact that she was fleeing to avoid criminal prosecution.
18.  On 17 March 2009 the Kazakhstan GPO put the applicant’s name on an international wanted list.
19.  On 21 March and 17 July 2009 the Kazakhstan GPO charged the applicant with further counts of misappropriation of bank property, committed under the same scheme as described in the decision of 6 March 2009.
20.  On an unspecified date the Kazakhstani investigating authorities severed the criminal case concerning misappropriation of BTA Bank property against a number of bank employees, gave it the number 0951701710002, and sent it for trial to the Almatinskiy District Court. The list of accused in those proceedings did not include the applicant.
21.  On 15 September 2009 the Almatinskiy District Court dismissed an application by Ms K., a lawyer appointed by the applicant to represent her interests in criminal proceedings in Kazakhstan, to allow Ms K. to participate in the proceedings in case no. 0951701710002, on the ground that the applicant was not party to the criminal proceedings in the severed criminal case in question.
22.  On 10 August 2009, during a briefing for the media concerning the preliminary investigation in the criminal case against Mr Ablyazov and other employees of the BTA Bank, representatives of the Kazakhstan GPO made the following statement:
“... Some of the individuals misled and threatened by [Mr Ablyazov] have left the country ...
The investigating group wishes to inform those persons whose names were put on a wanted list that the investigation is prepared to consider their lawyers’ applications for their return to Kazakhstan, so that they can be party to the continuing investigation ...
At the same time the investigating group warns all those who are deliberately spreading unreliable information in the mass media , ... rumours aimed at creating a negative public attitude. The group considers such acts unlawful and creating a deliberate threat to social stability and the interests of the State.”
23.  According to an article published on 26 February 2010 at the site newskaz.ru, during a meeting with Kazakhstani businessmen President Nazarbayev allegedly made the following statement to businessman S., who, among other people, had in 2002 signed a petition to Mr Nazarbayev, asking for a pardon for Mr Ablyazov: “A group of his [Mr Ablyazov’s] friends, including you, wrote me a letter, swearing ... that he would serve his fatherland. He [Mr Ablyazov] spat in your face and the faces of all those around here, I won’t give [their] names, his friends, and you should bear responsibility”.
24.  It appears that the meeting and Mr Nazarbayev’s statement were recorded and that the video recording was subsequently submitted by the applicant to the Russian courts in the extradition proceedings (see paragraph 52 below).
25.  In August 2009 the applicant applied to the Moscow branch of the Federal Migration service (“the Moscow branch of the FMS”) for asylum. In her application she submitted that since 2005 she had been employed by the BTA Bank, headed by Mr Ablyazov, a prominent opposition figure in Kazakhstan, who, before his appointment as head of the BTA Bank had been persecuted in 2002 and had served a prison sentence in connection with his political activities. In February 2009 the bank was nationalised by the Kazakhstani Government, which in fact was a raider attack on it, following which she had left Kazakhstan, fearing persecution by the authorities. A criminal case had been opened against Mr Ablyazov and against over twenty other employees of the bank, including the applicant.
26.  The applicant claimed that she feared that if returned to her home country she would be subjected to torture. In that connection she referred to an incident on 23 February 2009, in which two high-ranking Kazakhstani officials had told her that criminal proceedings against Mr Ablyazov would be opened, and threatened her with reprisals and with preventing her from access to medical assistance if she refused to cooperate with them and give statements incriminating Mr Ablyazov. They also claimed that the national courts would take a decision in the criminal case which was to be opened, and that that decision would be dictated to them by the leaders of the country. Hence, the applicant concluded that her criminal prosecution in Kazakhstan was politically motivated and that she would run a risk of ill‑treatment and be denied a fair trial if she returned to her home country. She also referred to various reports from international organisations describing the problem of ill-treatment of detainees in Kazakhstan.
27.  After she had made her asylum request, officers of the Moscow branch of the FMS interviewed the applicant on several occasions in the remand centre in the presence of her lawyers, and were provided with access to the materials of the extradition check (a series of enquiries and background checks made prior to taking a decision on an extradition) conducted by the Russian Prosecutor General’s Office (hereinafter also “the Russian GPO”).
28.  On 4 December 2009 the Moscow branch of the FMS dismissed the applicant’s asylum request. The authority reasoned that the analysis of the information and materials available to it indicated that the applicant had never been involved in any political or public activities in Kazakhstan. Referring to reports from Human Rights Watch and the US State Department issued in 2008 and 2009 respectively the decision further stated that those bodies had noted that there had been some progress in Kazakhstan towards democratisation, although there were at the same time problems with freedom of expression and corruption. The authority stressed that the applicant had applied for asylum only after her arrest with a view to extradition, and concluded that her application had been motivated by her wish to avoid criminal prosecution for economic crimes.
29.  The applicant appealed against the decision, stressing that the criminal prosecution was politically motivated and reiterating the arguments contained in her asylum application.
30.  On 22 April 2010 the Zamoskvoretskiy District Court in Moscow (“the district court”) upheld the decision of 4 December 2009. It noted that the applicant had not adduced any reasons to substantiate her fear of political persecution in Kazakhstan. She had applied for asylum only after her arrest in July 2009, whilst she had arrived in Russia on 1 March 2009. Hence, her application was prompted not by the fear of being persecuted in Kazakhstan but by the fact that she was facing criminal prosecution there.
31.  On 15 June 2010 the Moscow City Court dismissed the applicant’s appeal against the decision of 22 April 2010, reiterating the reasoning of the district court.
32.  On 3 July 2009 the applicant was arrested in Moscow as a person wanted by the Kazakhstani authorities.
33.  By a letter of 8 July 2009 the Kazakhstan GPO lodged with their Russian counterpart a formal request for the applicant’s extradition. By the same letter it assured the Russian GPO that the applicant’s criminal prosecution was not politically motivated or based on any discriminatory grounds, and that after the termination of the criminal proceedings and after serving any sentence she would be free to leave Kazakhstan.
34.  On 27 July 2009 the Russian Ministry of Foreign Affairs informed the Russian GPO, in reply to their request, that they had no information on any circumstances which would preclude the applicant’s extradition.
35.  By a letter of 28 September 2009 the Kazakhstani GPO informed their Russian counterpart that they had examined the applicant’s lawyer’s complaint about an incident in the private hospital in February 2009 and had interviewed the hospital personnel. They enclosed copies of records of interviews with the head of the private clinic and three doctors who had been directly responsible for the applicant’s treatment, dated 22 September 2009. According to those documents, the interviewees confirmed that the applicant had undergone inpatient treatment in the hospital between 12 and 26 February 2009 in connection with a stroke. They further stated that they had no information that she had received any visits from law-enforcement authorities during her stay in the hospital, that the applicant had not told them about any such visits, and that they had not been contacted by such authorities in respect of the applicant while she was in hospital. They further stated that there was no intensive care ward in the hospital. Doctor B. also stated that in mid-March 2009 officials of the CNS had asked her whether the applicant had previously been treated in the hospital and whether B. had any information on her current whereabouts. B. further stated that she had informed her immediate superior, Doctor Zh., of that fact and that if the applicant had been visited earlier by law-enforcement officials in the presence of nurses while she was in the hospital they would have informed B. of that fact.
36.  On 7 December 2009 the Moscow branch of the FMS informed the Russian GPO that on 4 December 2009 it had dismissed the applicant’s request for asylum.
37.  On 9 February 2010 the Kazakhstan GPO assured their Russian counterpart that if extradited the applicant would be provided with adequate medical assistance, account being taken of her state of health. The letter was signed by Deputy Prosecutor General Mr A.D.
38.  On 21 April 2010 the Deputy Prosecutor General of Russia decided to extradite the applicant to Kazakhstan. The decision stated, in particular, that the applicant was charged with large-scale repeated embezzlement committed in an organised group and with the use of her position, which was an offence under Article 160 of the Russian Criminal Code (“the CC”) and carried a penalty of over one year’s imprisonment. The limitation period for criminal prosecution had not expired. The applicant had not acquired Russian citizenship and there were no circumstances precluding her extradition.
39.  The applicant appealed against the extradition order, submitting that her criminal prosecution was politically motivated; that she ran a risk of being tortured by the investigating authorities in Kazakhstan with a view to obtaining statements incriminating Mr Ablyazov, with whom they considered she enjoyed a “relationship of trust”; that high-ranking Kazakhstani officials had already threatened to prevent her from getting access to medical assistance if she refused to cooperate; and that one of those officials was Mr A.D., who subsequently assured the Russian authorities that she would be provided with medical assistance. She also asserted, with reference to reports from various international organisations, that the requesting country had a poor human rights record, especially as regards torture of detainees and conditions of detention and medical care provided to detainees, and that the latter fact was particularly alarming because of her health problems.
40.  In the extradition proceedings the applicant was represented by four lawyers of her choosing.
41.  On 27 May 2010 the Moscow City Court informed the Kazakhstan Ministry of Foreign Affairs that it was examining the applicant’s appeal against the extradition order and, referring to her arguments, requested to verify those submissions. A copy of the letter was forwarded to the Russian Ministry of Foreign Affairs.
42.  By a letter of 4 June 2010 the Kazakhstani GPO assured their Russian counterpart that in the event of her extradition the applicant would not be subjected to torture or ill-treatment, and that she would be secured a right to a fair and public trial respecting the principle of adversarial proceedings.
43.  By a letter of 16 June 2010 the Deputy Minister of Foreign Affairs of Kazakhstan informed the Russian GPO and the Moscow City Court that, in addition to the assurances previously given in respect of the applicant, the relevant Kazakhstani authorities guaranteed that in the event of her extradition the applicant would not be subjected to ill-treatment or torture; that her prosecution was not politically motivated; and that she would be guaranteed the right to a fair trial respecting the principles of a public hearing and adversarial proceedings. If extradited, the applicant would be held in a detention facility under the authority of the Ministry of Justice. Lastly, at any stage of criminal proceedings against the applicant the competent representatives of the Russian authorities would be granted access to her in detention with a view to verifying whether the Kazakhstani authorities complied with their undertakings.
44.  On 18 June 2010 the Moscow City Court (“the City Court”) dismissed the applicant’s complaint about the extradition order. It found that her allegations of political persecution, risk of torture and denial of fair trial were unsubstantiated and speculative, and had already been examined and dismissed as unfounded in the asylum proceedings. It further held that the assurances provided by the Kazakhstani authorities, and concerning specifically the applicant’s situation, negated the risk of ill-treatment, as well as refuted her submissions that her criminal prosecution was politically motivated.
45.  On 20 October 2010 the Supreme Court of Russia (“the Supreme Court”) allowed the applicant’s complaint and set aside the City Court decision, finding, among other things, that the first-instance court had unlawfully dismissed the applicant’s request to append to the case file a number of materials adduced by her and her lawyers and concerning the human rights situation in Kazakhstan, including several articles from newspapers on the adoption of the law proclaiming President Nazarbayev “leader of the nation”. The case was remitted at that level of jurisdiction for a fresh examination and with a new panel of judges. The City Court was instructed to examine thoroughly the applicant’s arguments against extradition, in particular in light of the case-law of the European Court of Human Rights.
46.  By a letter of 3 December 2010 the Kazakhstan GPO reiterated to their Russian counterpart the assurances given in respect of the applicant in their previous letters of 8 July 2009 as well as 9 February and 4 and 16 June 2010.
47.  On 8 December 2010 the City Court upheld the extradition order. The court noted that the applicant’s submissions concerning the risk of ill‑treatment and the political motivation behind her criminal prosecution had already been checked and dismissed in the asylum proceedings. Furthermore, they were speculative. It further observed that the European Court’s judgments in the cases of Klein v. Russia and Baysakov v. Ukraine, as well as the report of the US State Department issued in 2009 about torture in Kazakhstan, did not concern the applicant’s specific situation, whilst her submissions concerning the risk of ill-treatment and denial of fair trial were refuted by extensive assurances issued not only by the appropriate Kazakhstani authorities but specifically in respect of the applicant.
48.  On 2 February 2011 the Supreme Court allowed the applicant’s appeal, quashed the City Court decision and remitted the case for a fresh examination with a different panel of judges. The court found that the City Court had failed to conduct a thorough examination of the applicant’s allegations concerning the human rights situation in Kazakhstan, and that in dismissing them it had relied on the assurances given by the Kazakhstani authorities. However, the City Court had failed to assess the reliability of those assurances in the light of the requirements of the case-law of the European Court of Human Rights.
49.  On 2 March 2011 the Kazakhstan GPO assured their Russian counterpart that in the event of her extradition it would be open to the applicant to challenge the Kazakhstani court detention order in the courts.
50.  On 24 March 2011 the City Court upheld the extradition order in respect of the applicant. It reiterated that the FMS had already checked and dismissed the applicant’s arguments regarding political persecution. It further noted that, after examining numerous reports from NGOs on the situation in Kazakhstan, the relevant judgments of the European Court, and articles and publications in the media adduced by the applicant in support of her submissions, it was not persuaded that she had furnished convincing evidence to substantiate her fear of ill-treatment and denial of fair trial. It also considered that those submissions had been effectively refuted by the extensive assurances provided by duly authorised Kazakhstani authorities.
51.  On 20 July 2011 the Supreme Court set aside the decision of the City Court on the applicant’s appeal and remitted the case for examination at first instance with a different panel of judges. The Supreme Court noted that the Kazakhstani authorities had given an assurance that the applicant would not be subjected to torture after the Russian GPO had already approved the extradition order in respect of the applicant, and that the City Court was to examine more thoroughly the applicant’s submissions concerning the risk of ill-treatment and the political motivation behind her prosecution.
52.  On 21 September 2011 the City Court upheld the extradition order. It reiterated that the applicant’s submissions concerning the risk of ill‑treatment and denial of fair trial, as well as political persecution, had already been assessed and dismissed in the asylum proceedings. It went on to note that, after examining those arguments itself, as well as the abundant materials submitted by her, which included reports from various governmental and non-governmental organisations on the human rights situation in Kazakhstan, judgments of the European Court, articles published in the media, and relevant public statements by Kazakhstani officials, as well as video materials, it considered that the applicant had failed to produce convincing evidence to substantiate her submissions that she would be at risk of ill-treatment and denial of fair trial. With reference to the Dzhaksybergenov judgment (no. 12343/10, 10 February 2011) it pointed out that the European Court had recently refused to take the view that a total ban on extradition to Kazakhstan was called for, and that the Court had mentioned that the proceedings against the management of the BTA Bank had nowhere been referred to as politically motivated.
53.  The City Court further dismissed as unfounded and unconvincing the applicant’s submissions concerning the threats she had allegedly received in Kazakhstan and in Russia and the statements of public officials she referred to, relying, among other things, on the materials of the extradition check conducted by the Russian GPO and other materials, including the video record examined by the court. The court noted that none of the statements it had examined was addressed specifically to the applicant. It also found that her state of health was not such as to bar her extradition and that the fact that Mr Ablyazov had been granted political asylum in the United Kingdom and opined that the criminal proceedings against the applicant were politically motivated was not such as to call into question the lawfulness of the extradition order in respect of the applicant.
54.  The court further considered that the applicant’s allegations that she was at risk of ill-treatment and denial of a fair trial were, moreover, effectively refuted by the extensive assurances given by the relevant Kazakhstani authorities, and found that her argument that in the event of her extradition the Russian authorities would not take any action to monitor their Kazakhstani counterpart’s compliance with their undertakings was speculative.
55.  On 12 January 2012 the Supreme Court upheld the extradition order, endorsing the reasoning of the City Court. It held that the applicant had not put forward any convincing arguments suggesting that she would be subjected to mistreatment or denied a fair trial in the receiving country, and that the City Court’s conclusions had been correctly supported, among other things, by the recent findings of the European Court in the Dzhaksybergenov case.
56.  On 10 January 2012 the Moscow branch of the FMS granted the applicant and her daughter temporary asylum for one year, until 10 January 2013. None of the parties provided a copy of the decision or indicated the grounds on which it had been based.
57.  In 2005 the applicant underwent eye surgery (vitrectomy) on the right eye in a private hospital in Moscow. She did not specify whether the surgery had been a medical necessity, nor did she provide any specific information in that respect.
58.  The applicant has been suffering from diabetes and hypertension since 2006.
59.  In February 2009 the applicant underwent inpatient treatment in a private hospital in Astana. According to her discharge record dated 26 February 2009, she was diagnosed with progressing cardiovascular disease, hypertension, left-side hemiparesis and Type II non-insulin-dependent diabetes at the subcompensation stage. Her discharge recommendations included supervision by a neurologist and an endocrinologist and sugar level checks twice a day.
60.  On 11 March 2009 the applicant was examined by a neurologist at public hospital no. 180 in Moscow. He diagnosed her with cerebrovascular disease; after-effects of a stroke in February 2009; hypertension; left-side hemiparesis and Type II diabetes at the subcompensation stage and recommended that she take nootropic and hypotensive drugs and undergo unspecified inpatient treatment in August-September 2009.
61.  Following her arrest on 3 July 2009 the applicant was placed in remand prison IZ-77/6 (hereinafter “the remand prison”) in Moscow. On the same date an ambulance was called to treat her for hypertension.
62.  On 1 August 2009 the applicant was transferred to prison hospital no. IZ-77/1 in Moscow (hereinafter “the prison hospital”) for inpatient treatment.
63.  On 8 August 2009 the applicant’s lawyers obtained from a neurologist at public hospital no. 180 a certificate to the effect that her condition required inpatient treatment and administration of nootropics and hypotensive medication. The neurologist’s conclusions were based on the applicant’s discharge record of 26 February 2009 from the private hospital in Kazakhstan and the certificate of 11 March 2009 (see paragraph 60 above).
64.  On 22 August 2009, following a hypertensive crisis, the applicant had a burst blood vessel in the right eye, of which she complained to prison hospital staff on 24 August 2009.
65.  On 26 August 2009 the applicant was due to be discharged from the prison hospital. On that day she allegedly fainted on three occasions and was treated with 60 drops of phenobarbital, nifedipine and intramuscular injections of magnesia and metamizole sodium. At about midnight she was placed in a prison van which took her to the remand prison. The trip took about two hours because the van had to pick up another detainee.
66.  At about 4 a.m. on 27 August 2009 the applicant arrived at the remand prison and at 4 p.m. she was examined by the head of the remand prison medical unit, N.K., who promised her to secure her an examination by an ophthalmologist. According to the applicant, all her ensuing requests to be examined by an ophthalmologist were disregarded by the remand prison medical staff.
67.  In the applicant’s submission, in September 2009 the sight in her left eye started deteriorating and on an unspecified date in October 2009 she complained about it to a gynaecologist, but to no avail.
68.  On 8 and 18 December 2009 the applicant, through her lawyers, requested the head of the remand prison to allow Mr Sh.A., an ophthalmologist with whom she had concluded a private treatment agreement, to examine her in the remand prison.
69.  On 5 January 2010 the head of the remand prison informed her that the facility medical unit did not have ophthalmologists on its staff, and that she could be examined by that specialist in the prison hospital in accordance with her treatment plan.
70.  On 28 January 2010 the head of the remand prison requested the Moskovsko-Ryazanskiy transport prosecutor’s office (hereinafter also “the transport prosecutor’s office”) to authorise Sh.A.’s access to the applicant to examine her on the prison premises. On the same date the latter authority turned down the request.
71.  On 3 March 2010 the applicant was examined by an ophthalmologist at public hospital no. 72 in Moscow and diagnosed with after-effects of vitrectomy, diabetic retinopathy and cataract with complications.
72.  On 3 July 2010 the applicant was released from custody and placed under house arrest.
73.  The applicant furnished a written statement to her lawyers dated 1 September 2009 in which she submitted that the medical assistance provided to her in detention was “superficial” and of “unsatisfactory quality”. The remand prison lacked specialist doctors. The applicant was made to walk every day, although she had difficulty walking. Her personal medication was better than that provided by the detention facilities. Although her request for medication to be supplied by her lawyers was approved by the authorities, some of the drugs were allegedly excluded from that list by unidentified persons. She felt that the medication and injections she received were administered chaotically. On some occasions the administration of the remand prison put a person of unsound mind in her cell. At the same time the applicant emphasised that she had never been categorically refused medical assistance while in detention.
(b)  Information submitted by the Government
74.  The Government provided a complete copy of the applicant’s medical record, copies of her discharge records from the hospitals where she had had inpatient treatment while in detention, as well as the medical logbooks of the remand prison and the prison hospital for the relevant dates. The information contained in those documents can be summarised as follows.
75.  Upon admission to the remand prison on 3 July 2009 the applicant underwent a series of tests, including for HIV, a Wasserman test and a chest X-ray. She also had an entry examination by a doctor on duty, who took her blood pressure and heart rate and noted in her health record that her medical history included Type II diabetes; hypertension; an ischaemic stroke on 12 February 2009, and hepatitis B in 2000. She was diagnosed as “somatically healthy”.
76.  On 6 July 2009 the applicant had an in-depth examination by medical staff, during which she complained of headaches, hypertension and body numbness. Her diagnosis set out in the record of 3 July 2009 was confirmed and she was prescribed blood sugar testing, which was carried out on 7 and 13 July 2009.
77.  On 30 July 2009 the applicant complained to medical staff of permanent headaches, numbness in the left side, weakness and mouth dryness. She was examined by doctors, her blood pressure was taken and recorded as varying from 130/90 to 160/100 and 170/100. On the last two occasions she was provided with emergency treatment. Her diagnosis at the material time included the after-effects of a stroke on February 2009 with progressing angioencephalopathy accompanied by cerebrovascular crises; hypertension; Type II diabetes at the subcompensation stage, and 3rd to 4th degree obesity. She was prescribed hospitalisation in the prison hospital for inpatient treatment, and certified fit for the transfer.
78.  On 31 July 2009 the applicant was admitted to the prison hospital and on 1 August 2009 she had an entry examination by duty medical personnel.
79.  On 4 August 2009 the applicant underwent an ultrasound of the abdominal region and kidneys, which showed diffuse changes of the liver and pancreas but no pathologies.
80.  On 5 August 2009 the applicant had a general blood test and was examined by a neurologist, who diagnosed her with decompensated encephalopathy of mixed origin and prescribed her cinnarizine, phenibut and sedative medication, as well as injections of cerepro (choline alfoscerate).
81.  On 11 August 2009 the applicant had a biochemical blood analysis and a urine test and on 13 August 2009 she underwent a blood sugar test.
82.  On 19 August 2009 the applicant had an electrocardiography (“ECG”) and an ultrasonic cardiogram, which showed no abnormalities. On the same date she underwent an ultrasound of the mammary glands and was again examined by a neurologist. The latter confirmed the diagnosis of 4 August 2009 and noted an improvement in her condition as a result of following the prescribed treatment, which included lessening headaches and weakness, better walking and absence of negative dynamics in neurological status. The applicant was recommended to continue with the treatment prescribed during her first examination. She refused to take the antidepressants offered her.
83.  On 20 August 2009 the applicant had a further blood glucose test.
84.  While she was in the prison hospital the applicant received the following hypotensive, antihyperglycaemic, nootropic, vasodilator and spasmolytic drugs and sedatives: metformin, nicotinic acid, enalapril, phenibut, enam, indapamide, betacerc, coxtral, panangin, corvalol, B group vitamins; injections of 25% magnesia, cinnarizine, phenibut, bendazol, papaverine and cerepro. The record states that this treatment produced positive clinical effects.
85.  The entry dated 24 August 2009 states that the applicant’s discharge from the hospital was planned; her condition was assessed as satisfactory; and she was considered fit for the transfer. The discharge recommendations included: continuing intake of nootropics, antihyperglycaemics and hypotensives, including enalapril, coronal, metformin, phenibut, tioctacid, lipoic acid, trental and sedatives; blood pressure and glycaemic profile checkups; supervision by a neurologist and dynamic weight and glycaemia profile control.
86.  The entry dated 26 August 2009 indicates that the applicant’s examination by the prison hospital staff on that date revealed arterial tension measuring 190/100. She was then administered 40 drops of corvalol and an injection of magnesia, after which she was assessed as being fit for transfer.
87.  On 27 August 2009 the applicant was examined by the remand prison doctor, to whom she complained of headaches, weakness in the left side and unsteadiness while walking. The applicant’s heart rate was taken and her blood pressure measured at 160/100 and 150/90. She was instructed to continue taking etam, metformin, thrombo ASS and cinnarizine and to undergo further blood tests and arterial blood pressure checkups.
88.  According to the entry of 15 September 2009, the applicant complained of headaches, back pain and tachycardia, following which she was examined by a duty medical officer and her heart rate and arterial blood pressure measured, the latter being recorded as 180/110 and 160/100. She was prescribed concor, metformin, thrombo ASS and a series of blood and urine tests, which were carried out on the same day.
89.  The entry of 12 October 2009 stated that the applicant’s admission to the prison hospital for inpatient treatment was planned, her diagnosis including diabetes, 3rd stage hypertension and discirculatory encephalopathy.
90.  On 14 October 2009 the applicant was admitted to the prison hospital.
91.  On 15 October 2009 she was examined by a neurologist, to whom she complained of headaches, dizziness and general weakness in the left side of the body. Upon examination he prescribed her vinpotropile and injections of cerepro.
92.  On the same date she had an ECG, with no particular pathologies identified.
93.  On 21 October 2009 the applicant had an ultrasonic cardiogram and an ultrasound of the abdominal region and kidneys, with no acute conditions found.
94.  According to the applicant’s discharge record, during her stay in the prison hospital she received hypotensive, antihyperglycaemic, nootropic, vasodilator and spasmolytic treatment, including injections of nicotinic acid, cerepro, dibazol, papaverine, B group vitamins (B1 and B6), as well as enam, coronal, indopamide, trental, vinpotropile and metformin. The treatment produced positive effects; the applicant’s condition was considered satisfactory and she was found to be fit for transfer back to the remand prison. The discharge recommendations for the applicant included supervision by a neurologist; arterial blood pressure monitoring; control of the glycaemic profile and weight; limitations on consumption of salt and continued intake of hypotensive, antihyperglycaemic, nootropic and vasoactive drugs and sedatives prescribed by the hospital doctors.
95.  On 25 October 2009 the applicant was admitted to the remand prison medical unit. The relevant entry noted that she had no complaints and no epidemiological diseases.
96.  On 28 November 2009 the doctors of the remand prison medical unit examined the applicant of their own motion. The related entry states that she had no specific complaints besides headaches, hypertension and weakness in the left side of the body; that she was permanently taking metformin for diabetes and the hypotensive drugs prescribed to her; her blood sugar and arterial blood pressure levels were checked using a personal glucometer and sphygmomanometer. Following the examination, the applicant was recommended to continue the prescribed treatment including intake of the concor, thrombo ASS, cinnarezine and metformin drugs and to carry out regular checks of her blood pressure and blood sugar.
97.  On 28 January 2010 remand prison doctors examined the applicant of their own motion and measured her heart rate and blood pressure, those being recorded as 88 beats per minute and 170/100 and 170/90 respectively. The related entry noted that the applicant reiterated her complaints of headaches, hypertension and weakness; that her diagnosis of diabetes and hypertension was confirmed; that she was permanently taking metformin, noliprel, concor, magneB6 vitamins complex and thrombo ASS. She was prescribed the hypotensives nifedipine and normodipine, if her arterial blood pressure exceeded 150; she had a blood sugar test on the same day.
98.  On 28 January 2010 the applicant was offered admission to the prison hospital with a view, among other things, to being examined by an ophthalmologist and an endocrinologist, which she refused. The entry in the record contains a handwritten statement by the applicant dated 1 February 2010, to the effect that she requested not to be sent to the prison hospital because the remand prison authorities had turned down her request for access to an ophthalmologist preferred by her, because she considered the quality of the medical assistance provided in the prison hospital unsatisfactory and the conditions of detention and transfer there inhumane.
99.  On 16 February 2010 doctors of the remand prison medical unit examined the applicant of their own motion. The related entry notes that she was complaining of pain in the lumbar region and periodic pulsating pain in the left side of the head, and that she was able to walk around on her own, though slowly. Following the examination and the taking of her arterial blood pressure and heart rate, the doctor recommended that she undergo a general urine test and a biochemical blood test; prescribed her injections of magnesia 25%, mildronate (with a view to enhancing the microcirculation in the brain blood vessels and the eye socket), cerebrolysin and B group vitamins. The entry also noted that the applicant was receiving and taking her personal medication.
100.  On 17 February 2010 the applicant underwent chemical blood tests and urine tests in accordance with the doctors’ prescription on the previous day.
101.  On 3 March 2010 the applicant was examined by an ophthalmologist and a neurologist from Moscow public hospital no. 72. The former specialist diagnosed her with after-effects of eye surgery and diabetic proliferating retinopathy with a cataract with complications, and prescribed her 4% taufon (taurine) and 1% emoxipine eyedrops into both eyes and flobinzime. The neurologist confirmed diagnosis of the applicant with diabetes, encephalopathy and polyneuropathy; instructed her to have regular arterial blood pressure and blood sugar checks and prescribed her cavinton, betocerc, mexidol and injections of mexidol and kordexin.
102.  On 22 March 2010 in the remand prison the applicant had a blood sugar test and on the next day the medical staff checked her arterial blood pressure and carried out further blood sugar tests. The entry in the medical record noted, among other things, that the applicant was taking her private medication.
103.  On 29 March 2010 the applicant refused to be examined by remand prison doctors.
104.  On 1 April 2010 she was admitted to Moscow State hospital no. 20 with the following diagnosis: hypertensive crisis, 3rd degree 3rd stage arterial hypertension, Type II diabetes of medium gravity, encephalopathy of mixed origin, and obesity. Her condition on admission was considered to be of medium gravity.
105.  In the hospital the applicant underwent general and biochemical blood tests; urine tests; a chest X-ray; several rounds of ECG; an ultrasonic cardiography and a magnetic resonance tomography (“MRT”). She was examined by a neurologist on two occasions, an endocrinologist, an orthopaedist, an otolaryngologist and a psychotherapist. Those specialists diagnosed her with encephalopathy; a lacunar cyst in the brain stem connected to the stroke of 2009; cardiovascular disease; Type II diabetes of medium gravity at the subcompensation stage; osteochondrosis; and astheno-depressive syndrome.
106.  The applicant was also examined by an ophthalmologist, who diagnosed her with the after-effects of eye surgery and thrombosis of the central retinal vein, as well as an early cataract in the right eye and diabetic hypertensive retinopathy in the left eye. The applicant was prescribed 4% taurine eye drops and anti-vascular drugs and B group vitamins.
107.  While in that hospital the applicant was prescribed and received hypoglycaemic, vasodilator, hypotensive and nootropic treatment, including metformin; injections of actovegin, papaverine, platyphylline, B1 and B6 vitamins; atenolol, indapamide, thioridazine and sonapax. She was also prescribed, and followed, a strict diet.
108.  On 14 April 2010 the applicant was discharged from the hospital, with the treatment having produced positive clinical effects and her condition being assessed as “relatively satisfactory”. Her recommendations upon discharge included: a strict diet; blood tests; monitoring of arterial blood pressure and heart rate; continued intake of hypoglycaemic, vasodilator, hypotensive and nootropic drugs, including indapamide, capoten and thioridazine and metformine, as well as supervision by a generalist, an endocrinologist and a neurologist.
109.  On 12 May 2010 the applicant requested a consultation with the medical staff of the remand prison, with a view to coordinating her treatment as regards her intake of medication.
110.  On 13 May 2010 the applicant was examined by medical staff, who also took her arterial blood pressure and heart rate. Her main diagnosis was confirmed and she was also diagnosed with tonsillitis. The related entry states that at the time of examination the applicant was taking on a permanent basis metformine, concor, nomiprel and normoderpine and was having regular arterial blood pressure and blood sugar checks. Following the examination she was prescribed taurine and emoxipine drops in both eyes, and a mouthwash.
111.  On 21 May 2010 the applicant was examined by a stomatologist and received treatment for dental problems.
112.  By a letter of 28 May 2010 the remand prison informed the head of the Federal Service for the Execution of Sentences about the medical treatment the applicant had been receiving in detention. The letter stated, among other things, that, owing to the applicant’s interrelated chronic illnesses, the remand prison authorities had prepared an information letter for the transport prosecutor’s office, indicating “an unfavourable prognosis” for the applicant’s condition and “a serious prognosis for her life”.
113.  In November 2009 and in January 2010 the applicant brought two sets of civil proceedings complaining about the medical assistance available to her in detention.
(a)  First set of proceedings
114.  On 25 November 2009 the applicant complained to the Preobrazhenskiy District Court in Moscow that the remand prison authorities had failed to provide her with adequate medical assistance between 3 July and 25 August 2009 and 14 and 25 October 2009, seeking compensation for non-pecuniary damage. She also requested that the District Court instruct the head of the remand prison to secure her placement in a private ophthalmological clinic, as well as in the Scientific Research Institute for Neurology of the Russian Academy of Medical Sciences for rehabilitation treatment in connection with the after-effects of the stroke.
115.  By a judgment of 16 July 2010 the Preobrazhenskiy District Court dismissed the applicant’s complaint. Referring, among other things, to her medical record, it established that she had been provided with medical assistance in the remand prison and transferred to hospital for inpatient treatment on two occasions. It also found no indications to suggest that the applicant had been refused medical assistance at any time and held that, contrary to her submissions, she had been examined by an ophthalmologist in a public hospital.
116.  On 12 October 2010 the Moscow City Court rejected the applicant’s appeal against the first-instance judgment.
(b)  Second set of proceedings
117.  On 28 January 2010 the applicant complained to the Lyublinskiy District Court in Moscow that she had not received medical assistance for her eye problems in detention and that her eyesight was deteriorating and needed an eye surgery. She requested to be examined by ophthalmologist Sh.A., with whom she had concluded a treatment agreement, or any other independent ophthalmologist and endocrinologist; that she be transferred to a hospital specialising in eye treatment and in rehabilitation treatment for patients with stroke history, though not the prison hospital where she had previously been treated, alleging that the treatment she had received there had caused her condition to deteriorate. The applicant also complained about the circumstances of her transfer from the prison hospital to the remand prison on 26-27 August 2009; that she had not received any medication or treatment for her condition; and that the remand prison authorities had disregarded her related requests and complaints.
118.  On an unspecified date in March 2010 the applicant supplemented her claims, seeking admission to a private ophthalmological hospital and to the Scientific Research Institute for Neurology of the Russian Academy of Medical Sciences for rehabilitation treatment in relation to the after-effects of the stroke.
119.  On 14 April 2010 the Lyublinskiy District Court held a hearing in the applicant’s case. The transcript of the hearing indicates that the court examined the applicant’s medical record and a number of further documents concerning her state of health and interviewed as a witness Ms E.I., a doctor from the medical unit of the remand prison. E.I. stated, among other things, that she had been present when the applicant was examined by the ophthalmologist, and that the latter had not recommended urgent surgery for her eye problems. She also submitted that the remand prison had not furnished the applicant with the eye drops prescribed by the ophthalmologist because the facility did not have a supply of them. She further stated that in the remand prison the applicant was under the constant supervision of the medical staff, who examined her regularly, even when she had not made specific requests to that effect; the applicant received the metformin drug for her diabetes and a special diet; had regular blood sugar level checkups, and took other medication provided by the facility and by her lawyers.
120.  By a judgment of 14 April 2010 the Lyublinskiy District Court dismissed the applicant’s claims. It found that the applicant had turned down the remand prison authorities’ offer of hospitalisation with a view to being examined by an ophthalmologist and that shortly thereafter they had secured for her an examination by an ophthalmologist in a public hospital. The latter had at no point indicated that her condition required an urgent intervention. Contrary to the applicant’s submissions, her medical record contained no entries confirming that she had complained about her eyesight on each of the occasions she had undergone inpatient treatment in the prison hospital; the issue was first raised by her lawyers in December 2009. The court went on to note that the applicant had been placed in a prison hospital, where she had received the medical assistance required for her condition. This included examination by various specialist doctors, relevant tests and checkups, and medication. She was likewise provided with a special diet for her diabetes and was allowed to have her own medication in addition to the drugs available in the remand prison and the prison hospital.
121.  On 1 July 2010 the Moscow City Court dismissed the applicant’s appeal against the first-instance court judgment, endorsing its findings.
122.  From 9 to 29 August 2009 the applicant underwent inpatient treatment in the private hospital of the Moscow Institute of Cybernetic Medicine. She did not submit the entire record of that treatment, but only a short excerpt from it, which indicates that the clinic doctors confirmed her diagnosis as regards Type II diabetes at the subcompensation stage; hypertension; vascular disease; diabetic angiopathy of the main arteries and of the retina; left-side hemiparesis, obesity, osteochondrosis and a number of concomitant conditions. As to her eyesight, the applicant was diagnosed with the after-effects of eye surgery, partial intraocular haemorrhage and slight diabetic retinopathy in the right eye and with angiopathy in the left eye. The excerpt from the medical record submitted by the applicant was silent on whether her eye condition required any urgent medical intervention, as well as on the doctors’ recommendations or prescriptions in respect of her ailments, and also said nothing about whether her health had deteriorated, and if so whether this was connected to any defects in her previous treatment.
123.  On 3 July 2009 the Moskovsko-Ryazanskiy Transport Prosecutor ordered the applicant’s detention, referring to the detention order issued by the Kazakhstani court and Article 61 of the 1993 Minsk Convention. The decision did not set any time-limits for the applicant’s detention.
124.  On 16 July 2009 the transport prosecutor again ordered the applicant’s detention. He referred to the extradition request received from the Kazakhstani authorities, Article 60 of the Minsk Convention and Article 466 § 2 of the Russian Code of Criminal Procedure (hereinafter “the CCrP”).
125.  On 19 August 2009 the Meshchanskiy District Court (hereinafter also “the District Court”) dismissed the applicant’s complaint about the detention order of 16 July 2009. That decision was set aside on 14 September 2009 and the case remitted for a fresh examination at the first level of jurisdiction.
126.  On 16 September 2009 the District Court dismissed the applicant’s complaint about the detention order of 16 July 2009, finding that the prosecutor had acted in compliance with the requirements of Article 466 § 2, which authorised him to place a person in custody with a view to extradition on the basis of an extradition request accompanied by a foreign court’s detention order. The decision also noted that the complaint was examined in the applicant’s presence, and that her lawyers, who had been duly notified of the time and venue of the hearing, had left the court building before it had started examining the complaint. According to written statements by the applicant’s lawyers dated 16 September 2009, they had left the court at 4.30 p.m. because the hearing on the applicant’s complaint had not yet started and they “could not waste their time waiting”. Their statements also contained a request that the hearing be postponed.
127.  On 25 September 2009 the applicant complained to the District Court under Article 125 of the CCrP that the term of her detention authorised by the transport prosecutor on 3 July 2009 had expired on 3 September 2009 and that after that date, and in the absence of any extensions of her detention by domestic courts pursuant to Article 109 of the CCrP, she had been held in custody unlawfully. She requested to be released.
128.  On 1 October 2009 the Meshchanskiy District Court refused to entertain the above complaint; that decision was set aside by the Moscow City Court on 11 November 2009, and the case was remitted to the district court for a fresh examination.
129.  On 14 October 2009 the Moscovsko-Ryazanskiy Transport Prosecutor’s Office, in reply to the applicant’s request for her release, informed her that she was being held in custody under the detention order of 16 July 2009 issued pursuant to Article 466 § 2 of the CCrP, and that her detention following the receipt of the extradition request was governed by the rules of criminal procedure of the requesting State, namely Kazakhstan.
130.  On an unspecified date in October 2009 the applicant lodged with the Tverskoy and Meshchanksiy district courts further complaints under Article 125 of the CCrP, submitting that the period of her detention, unlawfully authorised by the prosecutor on 3 July 2009, had expired on 3 September 2009, and that her detention after that date, in the absence of any extensions by Russian courts pursuant to Article 109 of the CCrP, had become unlawful. Despite this, the prosecuting authorities had refused to release her. She requested to be released by the court.
131.  On 6 November 2009 the applicant complained to the Tverskoy District Court under Article 125 of the CCrP, reiterating her submissions that her detention after 3 September 2009 had been unlawful and seeking release.
132.  On 11 November 2009 the Moscow City Court on appeal upheld the decision of 16 September 2009, endorsing the district court’s reasoning and observing that the applicant’s lawyers, duly apprised of the hearing, had chosen to leave the court and not to attend and that in those circumstances the district court’s decision to pursue the examination of the complaint in their absence was justified.
133.  On 16 November 2009 the Tverskoy District Court refused to entertain the applicant’s complaint of 6 November 2009, finding that she had failed to articulate its subject matter clearly. It further held that, in any event, it had no powers under Article 125 of the CCrP to order the release of detainees or to order State officials “to carry out any procedural acts”.
134.  On 17 November 2009 the applicant brought civil proceedings against the head of the detention facility because she had not been released after the expiry on 3 September 2009 of the authorised period of her detention.
135.  On 18 November 2009 the Meshchanskiy District Court extended the applicant’s detention until 3 February 2010 with reference to Article 109 of the CCrP, following a request by the transport prosecutor. It noted that the transport prosecutor had adduced evidence showing that the extradition check conducted in respect of the applicant was under way and that it was necessary for further steps to be taken to investigate the issues she had cited in her arguments against extradition.
136.  The applicant appealed to the Moscow City Court against that detention order. The stamped copies of her appeal statements indicate that they were received by the District Court on 19 November and 1 and 25 December 2009. On an unspecified date the District Court sent the case file on the detention order to the Moscow City Court.
137.  On 9 and 25 December 2009 the Meshchanskiy District Court dismissed the applicant’s complaint lodged in September and October 2009 under Article 125 of the CCrP (see paragraphs 127 and 130 above).
138.  On 1 February 2010 the Meshchanskiy District Court extended the applicant’s detention until 3 April 2010 with reference to Article 109 of the CCrP and the pending extradition proceedings, at the prosecutor’s request. At the hearing the applicant was represented by counsel B., appointed for her by the district court. The applicant appealed to the city court against the detention order. It transpires that the district court received her appeal statements on 3, 4 and 15 February 2010.
139.  On 31 March 2010 the City Court set aside the district court’s detention order of 1 February 2010 on the ground that the applicant’s privately appointed lawyers had not been duly notified of the hearing at the first level of jurisdiction, and remitted the case for a fresh examination. By the same decision the City Court extended the applicant’s detention until 9 April 2010.
140.  On 31 March 2010 the City Court upheld the Tverskoy District Court’s decision of 16 November 2009 dismissing the applicant’s complaint under Article 125 of the CCrP. It held that that legal provision did not empower a court to order a detainee to be released or to order State officials to carry out any procedural acts.
141.  On 1 April 2010 the Meshchanskiy District Court extended the applicant’s detention until 3 July 2010, with reference to Article 109 of the CCrP. The documents at the Court’s disposal indicate that the applicant’s appeal statements were submitted to the district court on 2 April 2010.
142.  On 8 April 2010 the District Court re-examined and granted the prosecutor’s request for extension of the applicant’s detention until 3 April 2010. The court noted that by its decision of 31 March 2010 the city court had already extended the applicant’s detention until 9 April 2010 and that on 1 April 2010 the district court had approved a further extension of the applicant’s detention until 3 July 2010. The court also referred, among other things, to the fact that the extradition proceedings against the applicant were under way. It appears that the district court received the applicant’s appeal statements against the detention order of 8 April 2010 on 26 April and 4 May 2010.
143.  By a final decision of 12 April 2010 the City Court dismissed the applicant’s complaint under Article 125 of the CCrP, lodged in October 2009, upholding the Tverskoy District Court’s finding that a court had no authority under that provision to order her release.
144.  On 19 April 2010 the City Court upheld the decisions of 9 and 25 December 2009 concerning the applicant’s complaints under Article 125 of the CCrP and her requests for release, noting, among other things, that the Meshchanskiy Court had already extended her detention on 18 November 2009.
145.  By a final decision of 25 May 2010 the City Court dismissed the applicant’s civil claim of 17 November 2009 against the head of the detention facility in which she had been held, for failure to release her.
146.  By a decision of 9 June 2010 the City Court dismissed the applicant’s appeal against the district court detention order of 18 November 2009. On the same date the City Court upheld the detention order of 8 April 2010.
147.  On 2 July 2010 the transport prosecutor’s office ordered the applicant’s release from custody under house arrest.
148.  By a decision of 14 July 2010 the City Court dismissed the applicant’s appeal against the District Court detention order of 1 April 2010.
149.  The Constitution guarantees the right to liberty (Article 22):
“1.  Everyone has the right to liberty and personal integrity. 2.  Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.”
150.  The CIS Convention on legal assistance and legal relations in civil, family and criminal cases (“the Minsk Convention”), to which both Russia and Kazakhstan are parties, provides that in executing a request for legal assistance, the requested party applies its domestic law (Article 8 § 1).
151.  A request for extradition must be accompanied by a detention order (Article 58 § 2). Upon receipt of a request for extradition, measures should be taken immediately to find and arrest the person whose extradition is sought, except in cases where that person cannot be extradited (Article 60).
152.  A person whose extradition is sought may be arrested before receipt of a request for his or her extradition. In such cases a special request for arrest, containing a reference to the detention order and indicating that a request for extradition will follow, must be sent (Article 61 § 1). A person may also be arrested in the absence of such a request if there are reasons to suspect that he has committed, in the territory of the other Contracting Party, an offence for which extradition may be requested. The other Contracting Party must be immediately informed of the arrest (Article 61 § 2).
153.  A person arrested pursuant to Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1).
154. The term “court” is defined by the CCrP as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCrP as “an official empowered to administer justice” (Article 5 § 54).
155.  Chapter 13 of the CCrP (“Measures of restraint”) governs the use of measures of restraint, or preventive measures (меры пресечения), while criminal proceedings are pending. Such measures include placement in custody. Custody may be ordered by a court on application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of at least two years’ imprisonment, provided that a less restrictive measure of restraint cannot be used (Article 108 §§ 1 and 3). A period of detention pending investigation may not exceed two months (Article 109 § 1). A judge may extend that period up to six months (Article 109 § 2). Further extensions of up to twelve months, or in exceptional circumstances, up to eighteen months, may only be granted if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). If the grounds serving as the basis for a preventive measure have changed, the preventive measure must be cancelled or amended. A decision to cancel or amend a preventive measure may be taken by an investigator, a prosecutor or a court (Article 110).
156.  A judge’s decision on detention is amenable to appeal before a higher court within three days of its delivery date (Article 108 § 11 of the CCrP). A statement of appeal should be submitted to the first-instance court (Article 355). While the CCrP contains no time-limit during which the first‑instance court should send the statement of appeal and the case file to the appeal-instance court, Order no. 36 of 29 April 2003 by the Judicial Department of the Supreme Court of Russia requires that, “after the expiry of the three-day time-limit for appeal”, the first-instance court should submit the detention file to the higher court. Having received this file, second-instance courts should examine appeals lodged against the judge’s decisions on detention within three days (Article 108 § 11).
157.  Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of parties to criminal proceedings (Article 125 § 1). The competent court is the court with territorial jurisdiction over the location at which the preliminary investigation is conducted (ibid.).
158.  Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. Upon receipt of a request for extradition not accompanied by a detention order issued by a foreign court, a prosecutor must decide on the measure of restraint in respect of the person whose extradition is sought. The measure must be applied in accordance with established procedure (Article 466 § 1). If a request for extradition is accompanied by a detention order issued by a foreign court, a prosecutor may impose house arrest on the individual concerned or place him or her in detention “without seeking confirmation of the validity of that order from a Russian court” (Article 466 § 2).
159.  On 4 April 2006 the Constitutional Court examined an application by Mr N., who had submitted that the lack of any limitation in time on the detention of a person pending extradition was incompatible with the constitutional guarantee against arbitrary detention. In its decision no. 101‑O of the same date, the Constitutional Court declared the application inadmissible. In its view, the absence of any specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, which in the case of Russia was the procedure laid down in the CCrP. That procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Measures of restraint”) which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests. Accordingly, Article 466 § 1 of the CCrP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCrP or the time-limits fixed in the Code. The Court also refused to analyse Article 466 § 2, finding that it had not been applied in Mr N.’s case.
160.  On 1 March 2007 the Constitutional Court, in decision no. 333‑O‑P, held that Articles 61 and 62 of the Minsk Convention, governing a person’s detention pending the receipt of an extradition request, did not determine the body or official competent to order such detention, the procedure to be followed, or any time-limits. In accordance with Article 8 of the Minsk Convention, the applicable procedures and time-limits were to be established by domestic legal provisions.
161.  The Constitutional Court further reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention, in that it required a court to examine whether the arrest was lawful and justified. The Constitutional Court held that Article 466 § 1 of the CCrP, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty‑eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure and within the time-limits established in Chapter 13 of the CCrP.
162.  On 19 March 2009 the Constitutional Court, by decision no. 383‑O‑O, rejected as inadmissible a request for a review of the constitutionality of Article 466 § 2 of the CCrP, stating that this provision “does not establish time-limits for custodial detention and does not establish the grounds and procedure for choosing a preventive measure, it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused. Therefore, the disputed norm cannot be considered to violate the constitutional rights of [the claimant] ...”
163.  On 10 February 2009 the Plenary Session of the Russian Supreme Court adopted Directive Decision No.1, aimed at clarifying the application of Article 125 of the CCrP. It stated that acts or inaction of investigating and prosecuting authorities, including a prosecutor’s decision to hold a person under house arrest or to remand him or her in custody with a view to extradition, could be appealed against to a court under Article 125 of the CCrP. The plenary particularly emphasised that in declaring a specific decision, act or failure to act on the part of a law-enforcement authority unlawful or unjustified, a judge was not entitled to annul the impugned decision or to order the official responsible to revoke it or to take any particular actions, but could only instruct him or her to rectify the shortcomings indicated. Should the authority concerned fail to comply with the court’s instructions, an interested party could raise that matter before a court, and the latter body could issue a special decision [частное определение], drawing the authority’s attention to the situation.
164.  On 29 October 2009 the Plenary Session of the Russian Supreme Court adopted Directive Decision No. 22, stating that, pursuant to Article 466 § 1 of the CCrP, only a court could remand in custody a person in respect of whom an extradition check was pending when the authorities of the country requesting extradition had not submitted a court decision to place that person in custody. The judicial authorisation of placement in custody in that situation was to be carried out in accordance with Article 108 of the CCrP and following a prosecutor’s petition to place that person in custody. In deciding to remand a person in custody, a court was to examine if there existed factual and legal grounds for the preventive measure to be applied. If the extradition request was accompanied by a detention order of a foreign court, a prosecutor was entitled to remand the person in custody without a Russian court’s authorisation (Article 466 § 2 of the CCrP) for a period not exceeding two months, and the prosecutor’s decision could be challenged in the courts under Article 125 of the CCrP. In extending a person’s detention with a view to extradition a court was to apply Article 109 of the CCrP.
165.  In a recent ruling, no. 11 of 14 June 2012, the Plenary Session of the Russian Supreme Court held that a person whose extradition was sought might be detained before the receipt of an extradition request only in cases specified in international treaties to which Russia was a party, such as Article 61 of the Minsk Convention. Detention under those circumstances should be ordered and extended by a Russian court in accordance with the procedure, and within the time-limits, established by Articles 108 and 109 of the CCrP. The detention order should mention the term for which the detention or extension was ordered and the date of its expiry. If the request for extradition is not received within a month, or forty days if the requesting country is a party to the Minsk Convention, the person whose extradition is sought should be released immediately.
166.  For relevant reports on Kazakhstan covering the period between 2004 and 2009 see Dzhaksybergenov v. Ukraine, no. 12343/10, §§ 25-29, 10 February 2011.
167.  In his statement to the 13th Session of the Human Rights Council on 8 March 2010 the UN Special Rapporteur on Torture, Manfred Nowak, stated, among other things, that “while the conditions of detention were much better in Kazakhstan and had improved in recent years, the practice of torture certainly went beyond isolated cases, but was not widespread or systematic”.
168.  The chapter on Kazakhstan of the Amnesty International report “The State of The World’s Human Rights in 2010”, released in 2010, in so far as relevant, reads as follows:
“ ... Confessions extracted under torture continued to be admitted as evidence in trials. Criminal proceedings failed to comply with international standards of fair trial. Torture and other ill-treatment by members of the security forces remained widespread, in particular by officers of the National Security Service in the context of operations in the name of national security, and the fight against terrorism and corruption. Freedom of expression and freedom of religion continued to be restricted.
... Torture and other ill-treatment
In November the European Court of Human Rights ruled in the case of Kaboulov v. Ukraine that the extradition to Kazakhstan of any criminal suspect, including Amir Damirovich Kaboulov, would be in violation of Article 3 of the European Convention on Human Rights, as they would run a serious risk of being subjected to torture or inhuman or degrading treatment.
Despite amendments to the criminal and criminal procedural codes to clamp down on abusive practices, torture and other ill-treatment remained widespread. Confessions reportedly extracted under torture continued to be admitted as evidence in criminal trials, and individuals continued to be held in unregistered detention for longer than the three hours allowed for in national law. The lack of a clear definition of detention remained unaddressed despite recommendations of the UN Committee against Torture in November 2008.
Following his visit to Kazakhstan in May 2009, the UN Special Rapporteur on torture concluded that he “received many credible allegations of beatings with hands and fists, plastic bottles filled with sand and police truncheons and of kicking, asphyxiation through plastic bags and gas masks used to obtain confessions from suspects. In several cases, these allegations were supported by forensic medical evidence.” ...
Prison conditions
Inessa Karkhu, an accountant serving an eight-year prison sentence for fraud handed down in 2007, continued to be denied essential medical treatment for glaucoma, a disease that progressively damages vision. Her condition continued to deteriorate throughout the year and it was feared that she could end up losing her sight if she was not treated as a matter of urgency. She had to rely on medication delivered by her family which became difficult when she was transferred to a prison in Almaty, some 1,000 km from the capital Astana. Following international pressure, Inessa Karkhu was examined by an independent ophthalmologist in November, who found that the disease had significantly progressed and that both her eyes were affected. Nevertheless, Inessa Karkhu had not received the recommended medical treatment by December.”
169.  Human Rights Watch, in its World Report 2010 ‒ Kazakhstan, issued in January 2010, criticised the situation there as regards freedom of expression and assembly and considered that after the modest reforms of early 2009 Kazakhstan had dealt a series of blows to human rights. However, the report did not mention the issue of ill-treatment or torture of detainees or conditions of detention in that country.
170.  The applicant referred to a report entitled “Nations in Transit 2010 ‑ Kazakhstan”, published in June 2010 by Freedom House, a US non‑governmental organisation, which, in so far as relevant, states as follows:
“ ... National Democratic Governance. Bolstered by its growing oil exports and rising prosperity over the past decade, Kazakhstan has employed a rhetoric of democratization to gain recognition from Europe and the United States, but it has failed to demonstrate its commitment in practice. ...
Moreover, the government has continued to pursue a vendetta against disaffected former members of the regime. For example, Mukhtar Ablyazov, a former minister and opposition figure who later became chairman of BTA, the country’s leading bank, faced politically motivated fraud charges in 2009, and the widely respected technocrat and former state uranium company head Mukhtar Zhakishev was arrested on questionable grounds, apparently because of his personal ties to Ablyazov ...
Judicial Framework and Independence. The judiciary, which like the legislative branch operates under presidential patronage, has remained loyal to the regime and protected the interests of the state and its functionaries rather than those of individuals, minorities, and the weaker strata of society. A significant increase in funding allocated to the judiciary has led to an improvement in professional training, technical infrastructure, and wage levels to reduce corruption. Adoption of a new system of jury trials and incremental reforms to the penitentiary system denote positive changes. However, the 2009 trial of Evgeniy Zhovtis, which was marred by procedural violations and a failure to adequately consider evidence, and the ongoing legal persecution of regime opponents and critical media, have proven the inability of the judiciary to follow proper procedures and render fair and independent verdicts ...
Two recent, high-profile corruption cases ‒ the multimillion-dollar fraud charges levied against the former BTA management led by Mukhtar Ablyazov, and the related case against former Kazatomprom head Mukhtar Zhakishev ‒ have a clear political overtone. BTA Bank suffered huge losses amid the global financial crisis, leading the state to acquire a majority stake in early 2009. In August, the company’s new state‑controlled management commenced legal proceedings in the High Court in London, where Ablyazov and his associates had fled, accusing them of defrauding the bank of close to US$300 million through a series of questionable agreements. The London court granted an injunction freezing the assets of Ablyazov and his associates as the case proceeded ...
Zhakishev was arrested in May 2009 on charges of fraud worth USD 690,000. He was accused of establishing his own subsidiary companies in Austria using state resources and illegally selling uranium assets. The case linked him to Rakhat Aliev, who served as ambassador to Austria at the time. Zhakishev contends that his transactions were legal and approved by the government, and that the president directly controlled the uranium industry, meaning no deposit could be sold without his knowledge. There is a widespread perception that Zhakishev, who shares a close friendship with Ablyazov, was targeted in an effort to extract information about Ablyazov’s assets, and that he could be released if he agrees to cooperate.
By late 2009, a dozen senior managers affiliated with BTA had received prison sentences ranging from two to eight years, though the veracity of the charges and the evidence presented in court remained doubtful. A number of other professionals who were either connected to Ablyazov and the BTA management or suspected of involvement with them have reportedly avoided arrest by offering huge bribes to the prosecutor general and the financial police.”
171.  In its 2011 Annual Report on “the State of the World’s Human Rights” Amnesty International stated, in so far as relevant, as follows:
“ ... Reports of torture or other ill-treatment remained widespread, despite government promises to adopt a zero tolerance policy toward its practice. Impunity for such human rights violations persisted ...
In January, Kazakhstan assumed chairmanship of the OSCE, making counter-terror and security measures in Europe and Central Asia the OSCE’s priority. Human rights commitments did not figure prominently in the chairmanship’s agenda.
In May, parliament approved a constitutional amendment that made President Nursultan Nazarbaev “leader of the nation” ... Defacing pictures of the “leader of the nation” and misrepresenting his biography were made criminal offences ...
Torture and other ill-treatment
The authorities introduced a number of measures intended to prevent torture, including widening access to places of detention to independent public monitors and committing publicly to a policy of zero tolerance on torture.
Kazakhstan’s human rights record was assessed under the UN Universal Periodic Review in February. In its presentation, the government delegation reiterated that the Kazakhstani authorities were committed to a policy of zero tolerance on torture, and that they “would not rest until all vestiges of torture had been fully and totally eliminated”.
In February, the government postponed the creation of an independent detention monitoring mechanism, the National Preventive Mechanism (NPM), for up to three years. However, in line with their obligations under the Optional Protocol to the UN Convention against Torture, the authorities continued to develop a legal framework for the NPM in close co-operation with domestic and international NGOs and intergovernmental organizations.
In April, the Prosecutor General’s Office told Amnesty International that members of Independent Public Monitoring Commissions had been given unprecedented access to pre-trial detention centres of the National Security Service (NSS); four visits had been carried out in 2009 and eight in 2010.
Despite these measures, people in police custody reported that they were frequently subjected to torture and other ill-treatment, both before and after the formal registration of their detention at a police station. Law enforcement officials often failed to respect the existing law on detention, which requires that they register detainees within three hours of their arrest.
In October, the UN Special Rapporteur on torture criticized Kazakhstan for continuing to conceal the full extent of torture and other ill-treatment in its detention and prison system.
Impunity
Impunity for such human rights violations remained fundamentally unchallenged. The authorities failed to fully and effectively implement Kazakhstan’s obligations under the UN Convention against Torture. They also failed to implement the recommendations of the UN Committee against Torture and other UN treaty bodies and special procedures, especially with regard to initiating prompt, thorough, independent and impartial investigations into allegations of torture or other ill‑treatment.
In April, the Prosecutor General’s Office informed Amnesty International that in 2009 only two allegations of torture by security officers had been confirmed and that criminal cases had been opened against the offending officers. It dismissed as unfounded all allegations of torture by security officers raised by a number of people whose cases had been taken up by Amnesty International, other human rights organizations and the UN Special Rapporteur on torture.”
172. A document entitled “List of issues prior to the submission to the third periodic report of Kazakhstan” (CAT/C/KAZ/3), examined by the UN Committee Against Torture at its 45th session in November 2010 and published in February 2011, states, in so far as relevant:
“ ... Article 2 3. According to information before the Committee since the consideration of the previous periodic report in 2008, torture and ill-treatment, including the threat of sexual abuse and rape, committed by law enforcement officials, remain an issue of serious concern in the State party, and do not occur in isolated or infrequent instances.”
173.  The UN Human Rights Committee’s thirty-fifth annual report adopted on 28 July 2011 (A/66/40 (Vol.I)), in so far as relevant, reads as follows:
“...
While noting the adoption of an action plan for 2010-2012 on the implementation of recommendations of the Committee against Torture, the Committee expresses concern at increased reports of torture and the low rate of investigations of allegations of torture by the Special Procurators. The Committee is also concerned that the maximum penalty (10 years’ imprisonment) for torture resulting in death under Article 347-1 of the Criminal Code is too low (art.7).
The State party should take appropriate measures to put an end to torture by, inter alia, strengthening the mandate of the Special Procurators to carry out independent investigations of alleged misconduct by law enforcement officials. In this connection, the State party should ensure that law enforcement personnel continue to receive training on the prevention of torture and ill-treatment by integrating the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) of 1999 in all training programmes for law enforcement officials. The State party should thus ensure that allegations of torture and ill-treatment are effectively investigated, that perpetrators are prosecuted and punished with appropriate sanctions, and that the victims receive adequate reparation. In this regard, the State party is encouraged to review its Criminal Code to ensure that penalties on torture are commensurate with the nature and gravity of such crimes.”
174.  The Kazakhstan chapter of the 2012 Annual Report by Amnesty International, released in May 2012, reads as follows, in so far as relevant:
“ ... Reports of torture and other ill-treatment by security forces continued unabated, despite government claims that it was successfully addressing these violations. Security forces used excessive force to break up large-scale protest strikes by oil and gas workers and detained dozens of protesters and their supporters, as well as trade union and opposition activists ...
Torture and other ill-treatment
In July, the UN Human Rights Committee discussed Kazakhstan’s report on implementing the ICCPR. It regretted that Kazakhstan had not made more progress in eliminating torture and questioned the political will of the authorities to fulfil their commitments, especially in initiating effective investigations into allegations of torture or other ill-treatment. In the same month, in a retrograde move, the President signed a decree authorizing the transfer of the prison system back to the authority of the Ministry of Internal Affairs, thereby defeating years of reform efforts by government and NGOs. Access by public monitors to prisons and pre-trial detention centres had greatly improved since their transfer to the authority of the Ministry of Justice in 2004. In contrast, access to police cells and other places of detention under the authority of the Ministry of Internal Affairs remained problematic and most allegations of torture continued to be received from there ...
Following the violence in Zhanaozen on 16 December, released detainees and relatives of detainees reported that scores of people, including young women, had been rounded up and kept incommunicado in overcrowded cells in police custody. They claimed the detainees had been stripped naked, beaten, kicked, and doused with cold water. Journalists reported hearing screams coming from interrogation rooms in police stations. However, without access, independent monitors found it difficult to verify the allegations. At least one man was alleged to have died as a result of the torture he was subjected to in police custody.”
175.  The 2012 World Report published by Human Rights Watch, does not refer to the issue of ill-treatment in detention, and, in so far as may be relevant, states as follows:
“ ... Kazakhstan failed to carry out long-promised human rights reforms in the year following its chairmanship of the Organization for Security and Co-operation in Europe (OSCE). Instead, its rights record suffered further setbacks. Control of the penitentiary systems moved from the Ministry of Justice to the Ministry of Internal Affairs, putting prisons back in police control, and a new restrictive religion law was adopted. Websites were blocked and legal amendments limiting media freedoms remained. A union lawyer was imprisoned for six years for speaking out on workers’ rights. The government continued to punish activists for breaking restrictive rules on freedom of assembly and Kazakhstan’s leading human rights defender, Evgeniy Zhovtis, remains in prison ...
Freedom of Assembly
Kazakh authorities maintain restrictive rules on freedom of assembly and detained and fined activists and other individuals for organizing and/or participating in unsanctioned protests and pickets. Work on a draft law on peaceful assembly remained suspended.
In two separate incidents in January small groups of activists in Almaty and Urals were detained and fined for protesting against the proposed referendum to extend President Nazarbaev’s rule. In August three activists of the Socialist Movement of Kazakhstan were sentenced to short term administrative sentences after staging a protest in support of the striking oil workers outside the Nur-Otan party office in Almaty.
In mid-May workers in the oil sector in western Kazakhstan staged strikes and labor protests demanding higher wages, revised collective agreements, and non-interference in union work. On June 5, police dispersed several hundred workers who tried to protest outside the regional mayor’s office in Aktau, and temporarily detained and fined several dozen. On July 8 riot police dispersed oil workers on strike in Zhanaozen, and the following night used force to round-up workers who remained on a hunger strike. In mid-August Akzhanat Aminov, an oil worker, was given a two‑year suspended sentence for allegedly organizing an illegal strike ...
Detention of Activists
On August 8 union lawyer Natalia Sokolova was sentenced to six years in prison and banned from civil work for three years on charges of “inciting social discord” for addressing workers about wage disparity and “actively participating in illegal gatherings” at an oil company in western Kazakhstan. On September 26 her sentence was upheld on appeal, endorsing the government’s violations of her right to free expression and association.
On August 19 a prison appeals commission rejected political activist Aidos Sadykov’s latest request to be transferred from prison to a settlement colony, a penal establishment that allows for more freedoms than an ordinary prison. He was imprisoned for two years in July 2010 for “hooliganism accompanied by resistance to the police” in what appears to be a politically motivated set up.
On August 2 Evgeniy Zhovtis, Kazakhstan’s most prominent human rights defender and head of the Kazakh International Bureau for Human Rights and the Rule of Law, was denied early release for the second time. On September 3, 2009, Zhovtis was found guilty of vehicular manslaughter, following an unfair trial marred by serious procedural flaws that effectively denied him the right to present a defence. Zhovtis was sentenced to four years in a settlement colony. ...
Key International Actors
Kazakhstan’s controversial OSCE chairmanship culminated in a summit in December 2010 in Astana. NGOs held a parallel OSCE civil society conference and adopted recommendations to strengthen OSCE states’ implementation of human dimension commitments and improve cooperation with civil society. On the eve of the summit, US Secretary of State Hillary Clinton held a town hall meeting with civil society organizations, stressing that fundamental freedoms such as expression, association, and religion are “are absolutely critical to the building of sustainable societies.” Clinton honoured several Kazakh human rights groups, including the Almaty Helsinki Committee and the Kazakhstan Bureau for Human Rights and Rule of Law.
A July 2011 review by the UN Human Rights Committee criticized the use of child labor in tobacco and cotton fields and undue restrictions on freedom of association and assembly. The committee noted “concern at reports that threats, assaults, harassment and intimidation of journalists and human rights defenders have severely reduced the exercise of freedom of expression,” and called on Kazakhstan to “fully comply with the principle of non-refoulement.”
In July Catherine Ashton, EU high representative for foreign affairs and security policy/vice president of the European Commission, welcomed the launch of negotiations for a new “enhanced partnership” between the EU and Kazakhstan, which began in October, stressing that “the successful conclusion of the negotiations will be influenced by the advancement of democratic reforms.”
In September the US ambassador to the OSCE and the EU issued critical statements reacting to developments in Kazakhstan, including Sokolova’s imprisonment and the transfer of penitentiary control to the Ministry of Internal Affairs. However, such public criticism by the EU and US of human rights violations by the Kazakhstan government is muted.”